General Medical Council v M [2022] CSOH 25: The proper approach to interim order extensions
The General Medical Council applied for a twelve month extension to an Interim Order of Conditions on Dr M’s practice. An order of conditions for a period of 18 months had first been imposed on 16 April 2019 and renewed on a previous application on 9 September 2020 for a further twelve months.
In making the application, the General Medical Council set out its usual and often repeated grounds. It maintained there may be impairment of Doctor M’s fitness to practise which may adversely affect the public interest. In balancing the doctor’s interests against the public interest an order remained necessary. A reasonable and properly informed member of the public would, in the light of the concerns, be surprised and offended were they to learn that Doctor M had been permitted to return to unrestricted practice whilst the regulatory proceedings remained ongoing. The current conditions were a measurable, workable and enforceable means of addressing the risks identified.
On behalf of Dr M, it was argued that the principles identified in GMC v Hiew applied and, in the circumstances of this case, the GMC had failed to set out clear and cogent reasons justifying the imposition of conditions for a further twelve months. Furthermore, whilst the GMC argued that an order was necessary because “Public confidence in the profession may be seriously undermined if the respondent was allowed to return to unrestricted practice before the conclusion of the regulatory proceedings….”, that did not accurately reflect its own guidance. This identified the correct test as “Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold unrestricted registration during the relevant period.” Thus, the GMC had relied on the wrong test when applying for an extension of the Order. It was further submitted on behalf of Dr M, that the GMC had failed to properly explore the impact of an order on the Doctor’s reputation and finances without which a proper balancing exercise on the proportionality of an order could not properly have been undertaken.
In rejecting the GMC’s application for an extension, the court agreed that the GMC had in fact applied the wrong test in making its application and the test identified by the GMC’s own guidance involved a higher threshold than that contended for in this application. Significantly, the court went on to criticise the GMC for failing to identify cogent and clear reasons for the application. The court robustly rejected submissions which amounted to no more than a recital of the general formula. It stated in unequivocal terms that in making applications it was incumbent on the applicant to apply the facts of the case to the test and a failure to do so meant that there was no real evaluation of whether the order sought was in fact proportionate.
Finally, it is interesting to note that the court rejected the delay argument put forward on behalf of Dr M both because of the impact of Covid restrictions on the GMC and the delayed police investigation. This is noteworthy because had the court allowed the application for the extension, Dr M would have been subject to an interim order for over three and a half years!
The message from the court is therefore plain; cases must be properly argued with proper application of the facts to the relevant tests. Further, it seems that over two years since the first lockdown courts are still accepting “Covid delays” as a reasonable cause for delay. One wonders when that will become untenable.
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